The Rule of Men, Not Law

One of the more instructive defenses of Mayor Bob Lanier's siphoning of Metro funds to fill potholes and pave streets was delivered last week by Louis Macey, the former city councilman and onetime Harris County appointee to the transit agency's board.

"When a public body takes an issue to the public for an election," Macey told City Council, "the wording on the ballot seldom explains the issue to be voted upon."

In a general sense, Macey was right: rarely does the legalese on ballot measures lay out in clear, precise language what the public is being asked to approve, as anyone who's voted for or against amendments to the Texas Constitution in the past few years can attest.

But Macey was speaking specifically of the 1988 referendum in which voters in Metro's service area approved the agency's Phase 2 Mobility Plan. And the language of the proposition on the ballot for that election explained exactly and without ambiguity what voters were being asked to approve, at least in regard to the component of the mobility plan nearest and dearest to Lanier's and Macey's hearts:

"... the dedication ... of 25 percent of the receipts of Metro's 1 percent sales tax collected from February 1988 through September 2000, which is to be used for general mobility projects (consisting of major thoroughfare improvements, underpasses and overpasses and other projects designed to lessen traffic congestion) ...."

There was another thing about the 1988 election that was crystal clear to voters: the Phase 2 Mobility Plan, as approved unanimously by Macey and the other Metro board members before being sent to voters, called for Metro to pursue the construction of a rail transit system for the Houston area. Rail opponents such as Macey and Lanier -- who at the time, with the grudging assent of the city's business establishment, was the area's de facto transportation czar -- had agreed to a rail system in return for setting aside 25 percent of Metro's penny sales tax for street repairs.

Sixty percent of voters approved the total mobility package, but, in retrospect, they might as well have found something better to do on that Election Day. The vote, it turns out, was meaningless. The agreements and compacts leading to the election, and the results of the election itself, have long since been tossed in the garbage. Now, the words on that 1988 ballot simply mean whatever Bob Lanier and his buddies want them to mean.

"It is absolutely intellectually dishonest," former Metro board chairman John King, who helped draft the ballot measure, says of Lanier's efforts to justify the use of more than 25 percent of Metro's sales tax revenue and pad his own city budget with the funds. "But if people don't challenge Lanier on things, he's going to try and get away with it."

According to Macey, an investor who described himself to Council as an "unemployed politician," the men who met behind closed doors to hash out the city's transportation future eight years ago actually intended something different than what was on the ballot when it came to earmarking mass transit funds for streets.

"It meant at least 25 percent," Macey explained.
Substance-wise, Macey's freewheeling 45-minute analysis, in which he offered several creative readings of the ballot measure, provided little new or noteworthy in the ongoing revisionist effort to rewrite the results of the 1988 referendum. But his appearance did serve to revive questions about the private negotiations leading up to the vote.

The Council meeting must have seemed like old times for Macey and Lanier, since sitting out in the audience were Metro chairman Billy Burge and board members P.J. Lionetti and Jack Calvin. In late 1987, those three and Macey composed the anti-rail faction of the nine-member Metro board in negotiations for a new mass transit plan for Metro. Led by Lanier -- then a private citizen but recently chairman of the state highway department -- they pushed Metro to give up a portion of the sales tax to pay for street and bridge work as part of the plan.

King says he wanted the full support of the board before taking the plan to voters. He opened negotiations with Lanier and the board's anti-rail faction with an offer of a 5 percent set-aside. "I knew that I would go up to 25 if need be," King recalls. In a further effort to placate Lanier, then-mayor Kathy Whitmire offered him the chairmanship of the area's regional mobility committee, which would give Lanier influence with the state on transportation issues.

Lanier accepted, but the two sides didn't agree on the general mobility set-aside until an 11th-hour closed-door meeting. In an unwitting admission of the way the negotiations skirted the edge of legality, Macey says Lionetti excused herself from the discussion in order to avoid violating the state's open meetings law. Just hours before the vote, King and the board's remaining rail opponents finally settled on 25 percent -- a figure Macey says everyone on his side assumed was a minimum.

"We were so tickled to get a figure written down, okay," Macey said in a phone interview last week, "that you couldn't interpret 25 percent to be less than 25 percent. We interpreted it as you have to spend at least 25 percent, and not in any one year."

Wrong interpretation, says Naomi Lede, who at the time was a city appointee to the Metro board. "The compromise was that we would give as much as 25 percent and use the other 75 to build a mass transit system," recalls Lede. "I would not have voted for it if it had not been that way."

It has not been that way since 1992, when Lanier took office, finally finished off rail -- it was replaced with a $1 billion regional bus plan -- and began tapping Metro reserves to the tune of $55 million a year. According to Metro's figures, 51 percent of the sales tax has gone toward general mobility since Lanier took office. The agency's budget surplus, once a comfortable $600 million, is now estimated to be less than $100 million. Last September, Metro raised bus fares, cut routes and laid off 48 workers.

Lanier's raid on Metro's coffers has been carried out with the help of Burge. In another salient illustration of the way things work around here, Burge's permitted tenure on the Metro board -- members are limited to two four-year terms -- expired last month. Despite remarks earlier this year by County Judge Robert Eckels that he wanted to replace Burge (he's a county appointee), the diminutive developer is still chairman of the board. Burge says he is "phasing out" of the position. But don't be surprised if he's still around at the end of the year, when the city's current revenue contract with Metro expires and Lanier will propose a renewal.

"The deal is," Burge explained to the Chronicle last month, "you serve until you accomplish whatever you want."

Gee, most people think the deal is you play by the rules.
Burge was the recipient of a six-page letter last month from George Greanias in which the city controller proposed that voters get a chance to weigh in on Lanier's use of the transit agency's sales tax subsidy. Macey made the same suggestion to Council last week. The whole transit issue, he said, "is a burr that continues to stir this community."

"Put it on the ballot, once and for all. Get rid of it," he said.
Lanier's probably not inclined to let that happen. During his campaign to unseat Whitmire in 1991, he repeatedly called for a new referendum on Metro's rail plan, citing figures about the cost effectiveness of rail that he had used as Whitmire's Metro chairman to move toward killing the light rail "connector" that the transit agency and voters had approved. That was just one of a number of campaign promises that Lanier, once elected, acted as if he had never made. His 1991 election and subsequent re-election constitute a mandate to kill rail and spend Metro money on his own budget priorities, he has argued.

"I've been here three years and three months," Lanier said last week, "and I have yet to go to a public meeting where somebody raised their hand and said, 'Lanier, why don't you build us a train.'"

Of course, in the future, maybe when Lanier's out of office, somebody may be asking why the buses don't run so much anymore and why it costs so much to ride those that do.

And there's the fact that Metro also collects sales tax from residents outside the city limits in Harris County and 14 surrounding towns served by the transit agency. Those taxpayers have watched the number of bus routes decrease and fares rise while Lanier drains Metro to meet the city's needs.

"It's all a phony argument," says King, "this notion that we look at our polls and the polls think this is great -- you're talking about tax funds. It's not an issue of polling, it's an issue of voting."

But both the Metro board and City Council appear willing to honor Lanier's self-decreed mandate. Last week, Council was putty in Lanier's and Macey's hands, swallowing their arguments while displaying a tenuous grasp of the most basic information. Councilman Felix Fraga, for example, needed Macey to explain what kind of road projects the subsidy is used for -- less than a month before he will vote on Lanier's 1996 budget, which includes another $50 million in revenue transferred from Metro's coffers.

Lanier told another councilman who asked how much subsidy the voters actually approved in 1988 that Texas Attorney General Dan Morales had ruled that Metro was not in violation of the referendum's results. But if councilmembers had read that opinion, they would know the attorney general, citinga lack of facts, did not offer a ruling on either the legitimacy of the spending or whether the 25 percent set-aside was a minimum.

"If Lanier says otherwise, it's an outright lie," says King, adding that he had learned Lanier visited Morales' office just before the opinion was released. "The attorney general found a way to finesse not issuing a ruling."

Likewise, Macey was able to easily float past Council the notion that, if you counted back to Metro's inception in 1978, only 20 percent of the penny sales tax had been used for general mobility. "So we're 5 percent short," observed math whiz John Kelley, oblivious to the fact that voters approved a referendum that clearly stated the tax subsidy would begin in February 1988.

The Council's acquiescence peaked when the members gave Burge, Lionetti and Calvin a round of applause after Macey lauded their "tremendous effort and sacrifice."

Meanwhile, critics of Lanier's looting of the Metro subsidy are conspicuous by their absence. King says he has not been consulted on the issue, even though he would be an obvious and primary source of alternative information. Greanias dashed off a memo to Council in the middle of last week's meeting, asking that he be given equal time to dispute Macey and Lanier's contentions. He was ignored.

The controller expected as much. After all, he figures that even Lanier realizes his flouting of the results of the 1988 referendum, while certainly convenient, lacks any basis in reason.

"If you had a contract with Bob Lanier," Greanias notes, "and the agreement was you were going to get 25 percent of the revenue from a joint venture and you walked in and said, 'Bob, what I really meant was a minimum of 25 percent,' do you think you'd get it?